Judges labels RIAA claim ‘disingenuous’
p2pnet.net news:- ‘Disingenuous’ means insincere or calculating, and that’s how Judge Lee R. West has labelled a claim by Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA (Recording Industry Association of America).
Oklahoma mother Debbie Foster, accused of being an illlicit distributor of copyrighted music online, and her lawyer, Marilyn Barringer-Thomson, fought the RIAA to a standstill and in the process were awarded was attorneys’ fees.
Now the RIAA is doing everything it can to get out of paying.
In Capitol v Foster, West again confirmed his decision that Foster is entitled to reimbursement from the plaintiffs for her attorneys fees, rejecting an RIAA’s Motion for “Reconsideration“, says Recording Industry vs The People, going on:
Judge West emphasized the Supreme Court’s holding in Fogerty that
[b]ecause copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims.
Judge West, in reviewing the rationale for his decision, noted that
While the Court stopped short of finding the plaintiffs’ secondary copyright infringement claims frivolous or objectively unreasonable, it did find that such claims were “untested and marginal.” While the Court did not find the plaintiffs’ motives were necessarily improper, it did find those motives to be questionable in light of the facts of the case.
He further held that
contrary to the plaintiffs’ assertion, the Court did conclude that the Fogertv factor regarding the need for compensating the prevailing party under the particular circumstances of the case was, in fact, met. The Court noted that where, as here, the prevailing party is the defendant who, by definition, receives no award for damages at the successful conclusion of a meritorious defense, considerations of compensation become particularly important.
In response to the RIAA’s argument that their research had turned up no reported cases in which a Court had awarded fees but not listed the “Fogerty factors”, the Judge pointed out to the RIAA that his research had turned up a number of unpublished cases in which these same plaintiffs had been awarded attorneys fees, without the Court’s having listed the “Fogerty factors”:
‘The plaintiffs stress that they “they are not aware of a single reported decision where a Court has found none of the Fogerty factors but still awarded fees … .” See Plaintiffs’ Reply in Further Support of Their Motion for Reconsideration of this Court’s Feb. 6,2007 Order at p. 3, (emphasis in original). The Court has made no effort to canvass all such cases. Its cursory research has, however, uncovered a number of unpublished cases where courts granted record company plaintiffs, including several of the plaintiffs herein, awards of attorneys’ fees without so much as a passing mention of Fogerty or its factors. See e.g, Capitol Records, Inc. v. Lyons, 2004 WL 1732324 (N.D. Tex.); Elektra Entertainment Group. Inc. v. Bryant, 2004 WL 783 123 (C.D. Cal.); UMG Recordings, Inc. v. Davito, 2005 WL 3776349 (N.D. Ind.).
The Judge labeled as “disingenuous” the RIAA’s contention that had it not moved to dismiss the case, it could have proved secondary liability on defendant’s part:
The plaintiffs assert that had the case continued, they would have proved their secondary liability claims. Specifically, they contend they would have been able to show that the defendant knew or “should have known” that her Internet account was being used by a member of her household to infringe the plaintiffs’ copyrights. That may be so. The plaintiffs, however, chose not to pursue the claim. The Court finds disingenuous the plaintiffs’ assertion that “had they been given an opportunity, they would have been able to prove vicarious infringement.” The plaintiffs were in no way deprived of an opportunity to prove their allegations. They moved, voluntarily, to dismiss their claims after the defendant had already made a substantial investment toward defending against those claims.
The Court also rejected the RIAA’s statements about the settlement history of the case as being simply “not true”:
The plaintiffs contend that beginning on April 21,2005, they gave the defendant “repeated opportunities to end this litigation without paying anything.” Of course, that is not true. By the time the plaintiffs offered to dismiss their claims against the defendant, she had made a considerable litigation investment, and would have been required to pay those expenses already incurred. Furthermore, the plaintiffs offered merely to dismiss their claims without prejudice, thus leaving the defendant exposed to continued litigation in the matter. The plaintiffs also persist in conflating the defendant’s daughter’s infringement with liability on the part of the defendant. While the plaintiffs obtained a default judgment against the daughter, there has never been any finding of liability on the part of the defendant. On the contrary, she prevailed against the plaintiffs’ claims.
Stay tuned.
Also See:
fought the RIAA – Victory for RIAA victim, February 7, 2006
Recording Industry vs The People – Judge Denies RIAA “Reconsideration” Motion in Capitol v. Foster, Calls Plaintiffs’ Counsel “Disingenuous”, Motives “Questionable”, April 24, 2007
If your Net access is blocked by government restrictions, try Psiphon from the Citizen Lab at thIs the endSurvey: How Did Copyright Infringement Become Equated with Robbery? (of the Net) nigh?zze University of Toronto’s Munk Centre for International Studies. Go here for the official download, here for the p2pnet download, and here for details. And if you’re Chinese and you’re looking for a way to access independent Internet news sources, try Freegate, the DIT program written to help Chinese citizens circumvent web site blocking outside of China. Download it here.
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Tired of being treated like a criminal? They depend on you, not the other way around. Don’t buy their ‘product’. Do bug your local politicians. Use emails, snail-mail, phone calls, faxes, IM, stop them in the street, blog. And if you’re into organizing, organize petitions, organize demonstrations and then turn up on your local political rep’s doorstep, making sure you’ve contacted your local tv/radio station/newspaper in advance. Don’t just complain. Do something!
April 24th, 2007 at 2:44 pm
Seems like the RIAA got their BUTT handed to them on a platter! I am glad.
April 24th, 2007 at 7:44 pm
“[b]ecause copyright law ultimately serves the purpose of enriching the general public through access to creative works.”
I believe this to be a false affirmation. Copyrights ultimately serve the interests of large corporations with extensive portfolios. They do little for the general populous.
Of course the original intention was to propagate monopolies and prevent competition / innovation. This objective has been met and surpassed.
April 24th, 2007 at 9:27 pm
I wish i was a lawyer so i could understand all the lingo.
April 25th, 2007 at 5:00 am
Notice the strange lack of reporting on the main stream media.
Very strange that really. Hay ho.
April 25th, 2007 at 8:16 am
“I believe this to be a false affirmation. Copyrights ultimately serve the interests of large corporations with extensive portfolios. They do little for the general populous.”
Well put. I would add that “copyright” it does little and nothing for many the creator of individual works, such as songwriters/composers.
As to why we hear so much worthless music on radio and at homes, at the bottom the reason is copyright law and the legal system that supports the law corporations in “corporation vs. people” cases.
Rafael Venegas
gvenegas.com